II. PRELIMINARY PROCEEDINGS

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Rule 5: Initial Appearance Before Magistrate.

(a) In General.

(1) Appearance Upon an Arrest. Any person arrested–except upon a capias pursuant to an indictment or presentment–shall be taken without unnecessary delay before the nearest appropriate magistrate of:

(A) the county from which the arrest warrant issued; or

(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5.

(2) Affidavit of Complaint When No Arrest Warrant. An affidavit of complaint shall be filed promptly when a person, arrested without a warrant, is brought before a magistrate.

(3) Governing Rules. The magistrate shall proceed in accordance with this rule when an arrested person initially appears before the magistrate.

(b) Small Offenses Triable by Magistrate.

(1) Advice and Plea Entry for Small Offense. When the offense charged is a small offense triable by the magistrate, without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant's plea.

(2) Judgment and Sentence Upon Plea. When the defendant pleads guilty to a small offense, the magistrate may hear relevant evidence and sentence the defendant to pay a fine.

(3) Trial. When the defendant pleads not guilty to a small offense, the case shall be set for trial at some future day and the defendant's pretrial release dealt with under the provisions of applicable law, unless the defendant agrees to an immediate trial.

(4) Appeal. A defendant who is convicted of a small offense may appeal as a matter of right to the Circuit or Criminal Court for a trial de novo without a jury.

(c) Other Misdemeanors.

(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the plea shall be reduced to writing. The following rules shall then apply:

(A) Advice to Defendant. The magistrate shall advise the defendant of the right to a jury trial and to be prosecuted only on an indictment or presentment.

(B) Set Preliminary Examination Unless Not Required. The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody, unless:

(i) the defendant expressly waives the right to a jury trial and to a prosecution based only on an indictment or presentment; or

(ii) a preliminary examination is not required under Rule 5(e) below.

(C) Waiver.

(i) Of Preliminary Examination. The magistrate may bind the defendant over to the grand jury if the defendant waives a preliminary examination on a misdemeanor.

(ii) Of Preliminary Examination and Grand Jury. If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the district attorney general or the district attorney general’s representative does not then object. In the event of such waiver, the magistrate shall hear the misdemeanor case on the guilty plea and determine the sentence. The defendant may appeal judgment on a plea of guilty to a misdemeanor after waiver of a grand jury investigation and jury trial, but only as to the sentence imposed.

(2) Upon Plea of Not Guilty.

(A) Set Preliminary Examination. Unless the defendant expressly waives the right to a preliminary examination, when the defendant pleads not guilty the magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released.

(B) When Preliminary Examination Waived. The magistrate may bind the case over to the grand jury if the defendant waives in writing the preliminary examination.

(C) When Preliminary Examination, Grand Jury, and Jury Trial Waived; Appeal. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury, and to submit the case to the general sessions court–and the district attorney general or the district attorney general’s representative does not object–the magistrate may accept the defendant’s written waiver and hear the misdemeanor case on the not guilty plea. The magistrate may enter judgment, including any fine or jail sentence prescribed by law for the misdemeanor. The state may not appeal from a judgment of acquittal. The defendant may appeal a guilty judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.

(d) Felonies.

(1) Advice to Defendant. If the offense charged is a felony, the defendant shall not be called on to plead. The magistrate shall inform the defendant of:

(A) the charge and the contents of the affidavit of complaint;

(B) the right to counsel;

(C) the right to appointed counsel if indigent;

(D) the right to remain silent and give no statement;

(E) the fact that any statement given voluntarily may be used against the defendant;

(F) the general circumstances under which the defendant may obtain pretrial release; and

(G) the right to a preliminary examination.

(2) Preliminary Examination Waived. When the defendant waives preliminary examination, the magistrate shall promptly bind the defendant over to the grand jury.

(3) Schedule Preliminary Examination. When the defendant does not waive preliminary examination and when a preliminary examination is not rendered unnecessary under Rule 5(e), the magistrate shall schedule a preliminary examination within ten days if the defendant remains in custody and within thirty days if released.

(e) Indictment Before Preliminary Examination; Exceptions.

(1) Entitlement to Preliminary Hearing. Any defendant arrested or served with a criminal summons prior to indictment or presentment for a misdemeanor or felony, except small offenses, is entitled to a preliminary hearing. A preliminary hearing may be waived as set forth by subsection (2) or as otherwise provided in this rule.

(2) Waiver of Preliminary Hearing by Failure to Appear. A defendant waives the right to a preliminary hearing by failing to appear for a scheduled preliminary hearing, unless the defendant presents before the general sessions court, and the court finds within fourteen days after the scheduled preliminary hearing, clear and convincing evidence that the failure to appear was beyond the defendant's control. Unless the general sessions court finds by clear and convincing evidence that the defendant's absence was beyond the defendant's control and resets the preliminary hearing, the grand jury may return an indictment or presentment on the charges.

(3) Expeditious Hearings. While a defendant should have a reasonable opportunity to assert any legal right, preliminary hearings shall be conducted as expeditiously as possible considering the inconvenience to victims and witnesses, the parties, and the court by unnecessary delays.

(4) Remedy for Failure to Afford Preliminary Hearing. If an indictment or presentment is returned against a defendant who has not waived his or her right to a preliminary hearing, the circuit or criminal court shall dismiss the indictment or presentment on motion of the defendant filed not more than thirty days from the arraignment on the indictment or presentment. The dismissal shall be without prejudice to a subsequent indictment or presentment and the case shall be remanded to the general sessions court for a preliminary hearing.

(f) Defendant’s Presence. The defendant’s presence at the initial appearance is governed by Rule 43.

Advisory Commission Comment.

As far as the actions before a magistrate exercising the jurisdiction of a general sessions court are concerned, Rule 5 substantially embodies existing law as to jurisdiction and procedure. This rule is intended to provide comprehensive guidance for those exercising this jurisdiction. Small offenses are those which carry a maximum fine of fifty dollars and for which no imprisonment may be inflicted. T.C.A. § 40-408 [now repealed]. It should be noted in connection with subdivision (b), dealing with small offenses triable by a magistrate, that there is no appeal from the judgment in a case in which a guilty plea is entered. Where trial is held for a small offense upon a plea of not guilty and a conviction results, there is a right to a trial de novo upon appeal, but there is no right to a jury upon the new trial (there being no such right as to small offenses in the first instance). Further, where the defendant in serious misdemeanor cases waives the right to a jury trial, that waiver before the magistrate carries over into the criminal or circuit court and attaches to the trial de novo on appeal unless the defendant demands a jury as part of the appeal notice as required by § 27-5-108. See State v. Jarnigan, 958 S.W.2d 135 (Tenn. 1998). The rights in all (except small) offenses to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon the provisions of Art. 1, Secs. 6 and 14, Constitution of Tennessee.

The preliminary examination referred to in this rule is the proceeding formerly called a preliminary hearing. It must be scheduled within ten days if the accused is in custody, and within thirty days if the accused is on bond. See Rule 45(a), dealing with the computation of time.  It is important to note that while the Constitution and the Rules vest the right to trial by jury in the accused, this right cannot be waived under this rule in the face of an objection by the district attorney general or his or her representative. This provision acts as a safeguard against the possibility that an accused might be permitted to enter a guilty plea to a lesser included offense and effectively bar prosecution for a more serious crime. Price v. Georgia, 398 U.S. 323 (1970); Waller v. Florida, 397 U.S. 387 (1970). Hence, in effect the state now has a right to a trial by jury, if the district attorney general or his or her representative asserts the right by objecting to the waiver by the defendant. Note that the rule does not require an affirmative act on behalf of the state before an accused can effectively waive the right, but simply provides that it cannot be done in the face of an objection. This wording by the commission was deliberate, because it is recognized that many general sessions courts must sometimes operate without the presence of the district attorney general or his or her representative. Nevertheless, in order to exercise an objection and thus protect the state's position, the district attorney general personally or by representative will need to know of the proceeding and to enter an objection. The court should construe the words "or the district attorney general's representative" to include anyone connected with law enforcement who reports to the court that the district attorney general or one of his or her assistants has requested that the objection be made.

Under Rule 5(d), covering a felony charge, it is extremely important that the magistrate inform the accused in substantial compliance with this rule.

Rule 5(e) simply carries over into the Rules the same conditional right to a preliminary hearing now embodied in T.C.A. § 40-1131 [repealed]. It was not the intention of the commission to enlarge or diminish that conditional right; therefore, the body of case law which has been developed in connection with the statute retains its precedential value. Waugh v. State, 564 S.W.2d 654 (Tenn. 1978).

The commission's rationale, which was presented to the Supreme Court prior to the approval of these rules, is that the court has jurisdiction to enter a judgment calling for a fine in excess of fifty dollars, where provided by law and set by a jury. If the accused waives the right to have a jury set the fine and agrees that the judge set it, this act confers upon the court jurisdiction to set such a fine. An analogous situation arises each time a defendant waives a jury and permits a trial before a judge. In either instance the judge can exercise the full jurisdiction of the court because there has been a valid waiver of the right to have jury participation. Thus, under these rules, a judge can set a fine to the full limit of the appropriate penal statute, when a jury has been waived.

Rule 5(c)(1) and (2) conform the rule to T.C.A. § 40-4-112, which allows an appeal of the sentence even upon a plea of guilty.

This rule allows a de novo appeal "as provided by law" which contemplates a jury trial as provided by T.C.A. Section 27-3-131(a). Attorneys should be aware, however, that T.C.A. § 27-3-131(b) requires that the demand for a jury must be made at the time of filing an appeal.

These rules permit general sessions courts to use audio-visual technology to conduct initial appearances where a plea of not guilty is entered by the defendant. Nothing in paragraph (d) prohibits the prosecutor or defense counsel from being present and heard. In addition, paragraph (d) does not apply to preliminary examinations pursuant to Rule 5.1 nor misdemeanor trials. These amendments are substantially similar to Rule 5-303 of the New Mexico Rules of Criminal Procedure and Rule 10 of Hawaii Rules of Penal Procedure and reflect the growing need for the use of technology to expedite the processing of initial criminal proceedings and reduce the cost of such processing. The purposes for the Rules, which these amendments are intended to achieve, are set forth in Rule 2: "...to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."

Advisory Commission Comments [2007].

Tenn. Code Ann. §40-1-109 requires a written guilty plea for misdemeanors. The amendment to subsection (c) conforms the rule to the statute.

Advisory Commission Comments [2010].

Rule 5(e) has been amended in its entirety so as to clarify when the defendant is entitled to a preliminary hearing. Rule 5(e)(1) and (4) make clear that the defendant enjoys the right to a preliminary hearing following arrest on a warrant or an appearance by a criminal summons which cannot be defeated by either an indictment or presentment. The former rule omitted the presentment, apparently by oversight, and this has been corrected. The amendment retains the former procedure of requiring a motion to dismiss if there is a premature indictment or presentment but the time for the motion is no longer measured from the "arrest," but rather from the date of the arraignment on the indictment or presentment in circuit or criminal court.

Rule 5(e)(2) provides that a defendant waives the preliminary hearing by failing to appear. There is a relief from waiver provision if the defendant promptly establishes that the defendant's absence was beyond the defendant's control. The State has the right to seek an indictment or presentment during the intervening fourteen days, which is subject to a dismissal if the defendant makes the required showing.

Rules 5(c)(1)(B) and 5(d)(3) set forth the minimum time within which preliminary hearings must be held. Rule 5(e)(3) addresses the reverse issue: the pernicious problem of preliminary hearings being routinely continued for so long that witnesses, parties, and the Court are prejudiced. While there may be sound reasons for continuing the hearing, such as a mental examination, the hearing should not ordinarily be delayed unless it is essential for the interests of justice.

Rule 5 by its terms does not apply to an arrest upon a capias pursuant to indictment or presentment. Rule 5(a)(1). These amendments are in no way intended to change the rule that, when there is no arrest warrant or criminal summons issued on an affidavit of complaint (where the State commences the prosecution by indictment or presentment), there is no right to a preliminary hearing. See Moore v. State, 578 S.W.2d 78 (Tenn. 1979).

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